The Supreme Court has declined to grant review of a Sixth Circuit decision that cast significant doubt on the effectiveness of an employee’s waiver of Fair Labor Standards Act (FLSA) collective action rights. Last summer, the Sixth Circuit became the first federal appellate court to address an employee’s waiver of rights to participate in a FLSA collective action outside the context of arbitration. There, the court invalidated a collective action waiver in a severance agreement, which was a blow to employers. Although the Supreme Court’s denial of certiorari was without comment, it is likely the Court declined to hear the case because the Sixth Circuit’s decision arguably created no circuit split for the Court to resolve since it did not involve an employer’s attempt to compel arbitration.

Executive Summary: The Eleventh Circuit has affirmed a district court's decision denying an employer's motion to compel the arbitration of a Fair Labor Standards Act (FLSA) collective action, finding that the court's decision was within its authority to manage such actions. The arbitration agreements supporting the motion to compel arbitration were signed after the FLSA collective action was filed. In denying the motion to compel, the district court held that the arbitration agreements were unconscionable and that there was a record of abuse in obtaining the agreements. See Billingsley v Citi Trends, Inc., 560 Fed Appx. 914 (11th Cir. 2014).

I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward, that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).